News

Legal Guardianship – Status of Fathers

By Sarah Ryan, Solicitor, Family Law Unit

Many fathers and indeed cohabiting couples who are not married to each other are under the mistaken impression that the placing of the father’s name on the child’s birth certificate automatically gives guardianship rights to the unmarried father. This is not the case under Irish law.

What is Guardianship?

Guardianship means the rights and duties of parents in respect of the upbringing of their children. It refers to the decisions that must be made during the child’s lifetime which relate to the lifestyle and development of the child and gives the guardian a right to partake in the important decisions in a child’s life for example – education, religion and general issues in respect of upbringing. The rights of parents to guardianship are set out in the Guardianship of Infants Act, 1964.

Who can be a Guardian?

The married mother and father are automatically joint guardians of a child.

The natural mother is automatically a guardian of a child.

The natural unmarried father is not automatically a guardian of a child – he can only be appointed a guardian by way of the following:-

• If he subsequently marries the mother of the child; • By making an application to court (with or without the consent of the mother); • By entering into a statutory declaration with the agreement of the mother declaring that they agree to the appointment of the father as guardian of the child. Whilst the signing of the statutory declaration has the same legal effect as an actual court order, practical difficulties arise with this method as there is no central office where the statutory declaration is filed. It is therefore advisable for all unmarried fathers to bring a court application to obtain a guardianship order. If a father wishes to be successful in his application for guardianship, he should be in a position to demonstrate to the court that he plays an active role in the child’s life and/or wishes to do so and that he is paying maintenance for the child in accordance with his financial circumstances.

If a child is very young, the court may in certain circumstances be reluctant to initially grant guardianship and the court may therefore adjourn the guardianship application for a period of time and review matters at that stage.

Rights of Guardians

The Guardianship of Infants Act, 1964 permits any person being a guardian of an infant to apply to the court for its direction on any question affecting the welfare of an infant such as guardianship, custody, access and in relation to any other questions affecting the welfare of the child – for example, where a child should attend school where agreement is not possible between the parents of the child. Welfare comprises the religious, moral, intellectual, physical and social welfare of an infant – it therefore has a very broad meaning.

Guardians and Wills

It is very important if you are the guardian of a child (especially if you are a mother and sole guardian) that you make a Will, appointing a guardian to act on your behalf in the event of your death. It is also strongly advised that you discuss this in advance with the proposed guardian and that he/she gives his/her consent to being named in your Will as testamentary guardian. The child’s surviving guardian will then act jointly with the new guardian.

For further information and advice please contact Sarah Ryan, Solicitor, Family Law Unit.

Summary

The natural mother is automatically the sole guardian.

Unmarried fathers of children do not have automatic rights to guardianship.

If the mother’s consent to guardianship is not forthcoming, a court application for guardianship is necessary.

The placing of the father’s name on the birth certificate does not grant guardianship rights.

It is vital for a guardian to make a Will and to appoint a guardian to act on his/her behalf in the event of death.